{"id":9970,"date":"2023-09-14T10:23:24","date_gmt":"2023-09-14T08:23:24","guid":{"rendered":"http:\/\/ab.peritus-ra.com\/?p=9970"},"modified":"2023-10-26T10:27:53","modified_gmt":"2023-10-26T08:27:53","slug":"anticipated-succession-and-avoidance-in-insolvency","status":"publish","type":"post","link":"https:\/\/www.peritus-ra.de\/en\/2023\/09\/anticipated-succession-and-avoidance-in-insolvency\/","title":{"rendered":"Anticipated succession and avoidance in insolvency"},"content":{"rendered":"<section class=\"l-section wpb_row height_large\"><div class=\"l-section-h i-cf\"><div class=\"g-cols vc_row via_flex valign_top type_default stacking_default\"><div class=\"vc_col-sm-12 wpb_column vc_column_container\"><div class=\"vc_column-inner\"><div class=\"wpb_wrapper\"><div class=\"wpb_text_column\"><div class=\"wpb_wrapper\"><p>Anti\u00adci\u00adpa\u00adted suc\u00adces\u00adsi\u00adon can have dreadful con\u00adse\u00adquen\u00adces, this shows a case our col\u00adle\u00adague Dr. Sebas\u00adti\u00adan Over\u00adkamp clo\u00adsed recent\u00adly in Saar\u00adland.<\/p>\n<p>Two spou\u00adses were mar\u00adried in the second mar\u00adria\u00adge. They each had one daugh\u00adter from their first mar\u00adria\u00adge, no child\u00adren tog\u00ade\u00adther. The house belon\u00adged to the spou\u00adses half each. In a con\u00adtract of inhe\u00adri\u00adtance both appoin\u00adted each other as sole full heirs but no bin\u00adding final suc\u00adces\u00adsi\u00adon.<\/p>\n<p>The hus\u00adband died first, his daugh\u00adter clai\u00admed her com\u00adpul\u00adso\u00adry share against the wife. Both par\u00adties were legal\u00adly repre\u00adsen\u00adted, let\u00adters were exch\u00adan\u00adged. It took some time until a valua\u00adti\u00adon report and a nota\u00adri\u00adal inven\u00adto\u00adry of the estate were sub\u00admit\u00adted. The wife trans\u00adfer\u00adred the house, which now belon\u00adged to her, to her daugh\u00adter and retai\u00adned the right to live in it. When she pas\u00adsed away, the house was gone, but the com\u00adpul\u00adso\u00adry share had not been paid yet. The wife\u00b4s daugh\u00adter renoun\u00adced the inhe\u00adri\u00adtance.<\/p>\n<p>The com\u00adpul\u00adso\u00adry heir appli\u00aded for the appoint\u00adment of an estate admi\u00adnis\u00adtra\u00adti\u00adon and the pro\u00adba\u00adte court appoin\u00adted an expe\u00adri\u00aden\u00adced admi\u00adnis\u00adtra\u00adtor. He found an account balan\u00adce in the three-digit range and estate lia\u00adbi\u00adli\u00adties in the high five-digit range oft he com\u00adpul\u00adso\u00adry share. He appli\u00aded for the ope\u00adning of insol\u00adven\u00adcy pro\u00adcee\u00addings for the estate. Since the trans\u00adfer of the real estate was sub\u00adject to chall\u00adenge, the Amts\u00adge\u00adricht Saar\u00adbr\u00fc\u00adcken initia\u00adted the pro\u00adcee\u00adding prompt\u00adly. The insol\u00adven\u00adcy admi\u00adnis\u00adtra\u00adtor appoin\u00adted us to assert the avo\u00adid\u00adance claim accor\u00adding to \u00a7134 InsO.<\/p>\n<p>We asser\u00adted the claim out-of-court and reques\u00adted per\u00admis\u00adsi\u00adon to regis\u00adter a note to block the land regis\u00adter. After the dead\u00adline has pas\u00adsed, upon our request and wit\u00adhout a hea\u00adring, Land\u00adge\u00adricht Saar\u00adbr\u00fc\u00adcken issued a preli\u00admi\u00adna\u00adry injunc\u00adtion based on which the note is ente\u00adred in the land regis\u00adter. The oppo\u00adnent rai\u00adsed objec\u00adtion, arguing that the right of resi\u00addence con\u00adsti\u00adtu\u00adtes con\u00adside\u00adra\u00adti\u00adon, making the trans\u00adfer not gra\u00adtui\u00adtous. This con\u00adside\u00adra\u00adti\u00adon is rele\u00advant, it may be hel\u00adpful in mat\u00adters rela\u00adted to gift tax, the right of revo\u00adca\u00adti\u00adon accor\u00adding to \u00a7\u00a7528,530 BGB, and also in com\u00adpul\u00adso\u00adry share sup\u00adple\u00admen\u00adta\u00adti\u00adon but not with insol\u00advan\u00adcy avo\u00adid\u00adance. In this con\u00adtext, the retai\u00adned right of resi\u00addence only results in the encum\u00adbrance of the sub\u00adject of the gift (\u00a7143 InsO), which is to be gran\u00adted befo\u00adre the gift. The oppo\u00adnent must return the encum\u00adbe\u00adred sub\u00adject, but is not obli\u00adga\u00adted to remo\u00adve the encum\u00adbrance. The encum\u00adbrance howe\u00adver, which exis\u00adted as the right of resi\u00addence, has alre\u00ada\u00addy cea\u00adsed due to the death of the wife. As a result, the Land\u00adge\u00adricht Saar\u00adbr\u00fc\u00adcken upholds the preli\u00admi\u00adna\u00adry injunc\u00adtion. The oppo\u00adnent filed an appeal, and we filed a lawsu\u00adit in the main pro\u00adcee\u00addings. When the court rejec\u00adted the appeal due to appa\u00adrent lack of pro\u00ads\u00adpects for suc\u00adcess, we rea\u00adched a sett\u00adle\u00adment. The oppo\u00adnent paid near\u00adly the mar\u00adket value of the pro\u00adper\u00adty as com\u00adpen\u00adsa\u00adti\u00adon for the avo\u00adid\u00adance claim.<\/p>\n<p>As a result, high five-digit legal costs are incur\u00adred for the avo\u00adid\u00adance pro\u00adcess throug\u00adhout all three ins\u00adtances. In addi\u00adti\u00adon, there is a five-figure com\u00adpen\u00adsa\u00adti\u00adon for the insol\u00adven\u00adcy admi\u00adnis\u00adtra\u00adtor and high four-figure estate lia\u00adbi\u00adli\u00adties due to the com\u00adpen\u00adsa\u00adti\u00adon of the estate admi\u00adnis\u00adtra\u00adtor, inclu\u00adding their expen\u00adses for repre\u00adsen\u00adting the unknown heirs in the insol\u00adven\u00adcy (ope\u00adning) pro\u00adcee\u00addings. Nevert\u00adhel\u00adess, in the insol\u00adven\u00adcy pro\u00adcess, a 100% pay\u00adout is achie\u00adved for the cre\u00addi\u00adtors, and even the sub\u00ador\u00addi\u00adna\u00adted inte\u00adrest and costs are cover\u00aded. This is an excel\u00adlent result for the insol\u00adven\u00adcy admi\u00adnis\u00adtra\u00adtor, the estate admi\u00adnis\u00adtra\u00adtor, the cre\u00addi\u00adtors, and their respec\u00adti\u00adve att\u00ador\u00adneys. Ever\u00adyo\u00adne was satis\u00adfied.<\/p>\n<p>Nota\u00adb\u00adly, the defen\u00addant in the avo\u00adid\u00adance action was not as plea\u00adsed. In the end, she paid the mar\u00adket price for the house her mother gifted to her, along with the costs of the avo\u00adid\u00adance pro\u00adcee\u00adding. Wit\u00adhout the anti\u00adci\u00adpa\u00adted inhe\u00adri\u00adtance and the ren\u00adun\u00adcia\u00adti\u00adon, she would have inhe\u00adri\u00adted the house along with the com\u00adpul\u00adso\u00adry por\u00adti\u00adon as a lia\u00adbi\u00adli\u00adty. That would have been a much bet\u00adter deal. Her loss amounts to a signi\u00adfi\u00adcant six-figure sum.<\/p>\n<p>View\u00aded sole\u00adly from the per\u00adspec\u00adti\u00adve of the pro\u00adper\u00adty trans\u00adfer, this case appears as one of thou\u00adsands car\u00adri\u00aded out annu\u00adal\u00adly in Ger\u00adma\u00adny. Howe\u00adver, it also vivid\u00adly illus\u00adtra\u00adtes what can hap\u00adpen when such tran\u00adsac\u00adtions are made wit\u00adhout legal coun\u00adsel. If the wife or her daugh\u00adter had enga\u00adged a spe\u00adcia\u00adlist att\u00ador\u00adney in inhe\u00adri\u00adtance law during the pro\u00adper\u00adty trans\u00adfer or at least during the ren\u00adun\u00adcia\u00adti\u00adon of the inhe\u00adri\u00adtance, that att\u00ador\u00adney could have and should have reco\u00adgni\u00adzed that there was a risk of insol\u00adven\u00adcy within the estate, inclu\u00adding insol\u00adven\u00adcy avo\u00adid\u00adance pro\u00adcee\u00addings and asso\u00adcia\u00adted costs. These issues are rightful\u00adly part of the exami\u00adna\u00adti\u00adon mate\u00adri\u00adal for the title of spe\u00adcia\u00adlist att\u00ador\u00adney. A spe\u00adcia\u00adlist att\u00ador\u00adney would have advi\u00adsed the daugh\u00adter to sett\u00adle the estate lia\u00adbi\u00adli\u00adties in the form of the step-sister\u2019s com\u00adpul\u00adso\u00adry por\u00adti\u00adon to at least bene\u00adfit from the remai\u00adning estate, ther\u00adeby saving her a sub\u00adstan\u00adti\u00adal amount of money.<\/p>\n<\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/section>\n","protected":false},"excerpt":{"rendered":"Anti\u00adci\u00adpa\u00adted suc\u00adces\u00adsi\u00adon can have dreadful con\u00adse\u00adquen\u00adces, this shows a case our col\u00adle\u00adague Dr. Sebas\u00adti\u00adan Over\u00adkamp clo\u00adsed recent\u00adly in Saar\u00adland. Two spou\u00adses were mar\u00adried in the second mar\u00adria\u00adge. They each had one daugh\u00adter from their first mar\u00adria\u00adge, no child\u00adren tog\u00ade\u00adther. The house belon\u00adged to the spou\u00adses half each. In a con\u00adtract of inhe\u00adri\u00adtance both appoin\u00adted each\u2026","protected":false},"author":21,"featured_media":8455,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wp_typography_post_enhancements_disabled":false,"footnotes":""},"categories":[217],"tags":[],"class_list":["post-9970","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-inheritance-and-heirs"],"_links":{"self":[{"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/posts\/9970","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/comments?post=9970"}],"version-history":[{"count":1,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/posts\/9970\/revisions"}],"predecessor-version":[{"id":9971,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/posts\/9970\/revisions\/9971"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/media\/8455"}],"wp:attachment":[{"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/media?parent=9970"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/categories?post=9970"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.peritus-ra.de\/en\/wp-json\/wp\/v2\/tags?post=9970"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}